Asif Tufal

PUBLIC BODIES AND POLICY

According to the ILEx Part 2 syllabus, candidates need to be aware of the continuing trend to restrict liability particularly for public bodies eg X v Bedfordshire County
Council and Stovin v Wise. Candidates are also to be aware of cases which appear to reverse this trend eg White v Jones and Spring v Guardian Assurance plc.

The various public authorities dealt with in this handout are as follows:

PROFESSIONAL SOCIETIES

Case Facts Decision Reason

Marc Rich v Bishop Rock Marine (1995)
(HL)
Watson v British Boxing Board of Control
(1999) (QBD)
Ship developed a crack in the hull while at
sea. Surveyor acting for the vessel’s
classification society recommended
permanent repairs but the owners effected
temporary repairs having persuaded the
surveyor to change his recommendation. The
vessel sank a week later.
During a professional boxing contest, the
claimant suffered a sub-dural haemorrhage
resulting in irreversible brain damage which
left him with, among other things, a left-sided
partial paralysis. Claimant contended that
defendant owed him a duty of care to provide
appropriate medical assistance at ringside.
The ship classification society did not owe a
duty of care to cargo owners.
The BBBC was liable for not providing a
system of appropriate medical assistance at
the ringside.
1. They were independent, non-profit making
entities
2. Cost of insurance would be passed on to
shipowners
3. Extra layer of insurance for litigation and
arbitration
4. Society would adopt a more defensive role
1. Boxers unlikely to have well informed
concern about safety
2. Board had special knowledge and knew
that boxers would rely on their advice
3. Standard response to sub-dural bleeding
agreed since 1980 but not introduced by the
Board

ADVOCATES

Case Facts Decision Reason

Arthur Hall v Simons (2000) (HL)
In three separate cases, clients brought claims
for negligence against their former solicitors.
The solicitors relied on the immunity of
advocates from suits for negligence, and
claims were struck out. The CA later held
that the claims fell outside the scope of the
immunity and that they should not have been
struck out. The HL considered the immunity.
Advocates no longer enjoyed immunity from
suit in respect of their conduct of civil and
criminal proceedings. It was no longer in the
public interest to maintain the immunity in
favour of advocates.
1. Immunity not needed to deal with collateral
attacks on criminal and civil decisions
2. Immunity not needed to ensure that
advocates would respect their duty to the
court
3. Benefits would be gained from ending the
immunity
4. Abolition of the immunity would
strengthen the legal system by exposing
isolated acts of incompetence at the Bar

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LOCAL AUTHORITIES
Case Facts
X v Bedfordshire CC Abuse cases:
M v Newham LBC
E v Dorset CC (1995) (HL) (a) Psychiatrist and social worker interviewed
a child suspected of having been sexually
abused and wrongly assumed from the name
given by the child that the abuser was the
mother’s current boyfriend, who had the same
first name (rather than a cousin). The child
was removed from the mother’s care.
(b) Local authority took no action for almost
five years to place the plaintiff children on the
Child Protection Register despite reports from
relatives, neighbours, the police, the family’s
GP, a head teacher, the NSPCC, a social
worker and a health visitor that the children
were at risk (including risk of sexual abuse)
while living with their parents, that their
living conditions were appalling and unfit and
that the children were dirty and hungry.
Education cases:
(a) Plaintiff alleged that his local education
authority had failed to ascertain that he
suffered from a learning disorder which
required special educational provision, that it
had wrongly advised his parents and that even
when pursuant to the Education Act 1981 it
later acknowledged his special needs, it had
wrongly decided that the school he was then
attending was appropriate to meet his needs.
(b) Plaintiff alleged that the headmaster of the
primary school which he attended had failed
to refer him either to the local education
authority for formal assessment of his
learning difficulties, which were consistent
with dyslexia, or to an educational
psychologist for diagnosis, that the teachers’
2
Decision
1. Categories of claims against public
authorities for damages.
2. In actions for breach of statutory duty
simpliciter a breach of statutory duty was not
by itself sufficient to give rise to any private
law cause of action. A private law cause of
action only arose if it could be shown, as a
matter of construction of the statute, that the
statutory duty was imposed for the protection
of a limited class of the public and that
Parliament intended to confer on members of
that class a private right of action for breach
of the duty.
3. The mere assertion of the careless exercise
of a statutory power or duty was not sufficient
in itself to give rise to a private law cause of
action. The plaintiff also had to show that the
circumstances were such as to raise a duty of
care at common law. In determining whether
such a duty of care was owed by a public
authority, the manner in which a statutory
discretion was or was not exercised (ie the
decision whether or not to exercise the
discretion) had to be distinguished from the
manner in which the statutory duty was
implemented in practice. Since it was for the
authority, not for the courts, to exercise a
statutory discretion conferred on it by
Parliament, nothing the authority did within
the ambit of the discretion could be actionable
at common law, but if the decision was so
unreasonable that it fell outside the ambit of
the discretion conferred on the authority that
could give rise to common law liability.
Furthermore …
4. In the abuse cases, the claims based on
breach of statutory duty had been rightly
Reason
6. In respect of the claims for breach of duty
of care in both the abuse and education cases,
assuming that a local authority’s duty to take
reasonable care in relation to the protection
and education of children did not involve
unjusticiable policy questions or decisions
which were not within the ambit of the local
authority’s statutory discretion, it would
nevertheless not be just and reasonable to
impose a common law duty of care on the
authority in all the circumstances. Courts
should be extremely reluctant to impose a
common law duty of care in the exercise of
discretionary powers or duties conferred by
Parliament for social welfare purposes. In the
abuse cases a common law duty of care would
be contrary to the whole statutory system set
up for the protection of children at risk, which
required the joint involvement of many other
agencies and persons connected with the
child, as well as the local authority, and
would impinge on the delicate nature of the
decisions which had to be made in child
abuse cases and, in the education cases,
administrative failures were best dealt with by
the statutory appeals procedure rather than by
litigation.
7(a). A local authority was not vicariously
liable for the actions of social workers and
psychiatrists instructed by it to report on
children who were suspected of being
sexually abused because it would not be just
and reasonable to impose a duty of care on
the local authority or it would be contrary to
public policy to do so. The social workers
and psychiatrists themselves were retained by
the local authority to advise the local
authority, not the plaintiffs and by accepting
the instructions of the local authority did not
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advisory centre to which he was later referred
had also failed to identify his difficulty and
that such failure to assess his condition
(which would have improved with
appropriate treatment) had severely limited
his educational attainment and prospects of
employment.
(c) Plaintiff alleged that although he did not
have any serious disability and was of at least
average ability the local education authority
had either placed him in special schools
which were not appropriate to his educational
needs or had failed to provide any schooling
for him at all with the result that his personal
and intellectual development had been
impaired and he had been placed at a
disadvantage in seeking employment
3
struck out. The purpose of child care
legislation was to establish an administrative
system designed to promote the social welfare
of the community and within that system very
difficult decisions had to be taken, often on
the basis of inadequate and disputed facts,
whether to split the family in order to protect
the child. In that context and having regard to
the fact that the discharge of the statutory
duty depended on the subjective judgment of
the local authority, the legislation was
inconsistent with any parliamentary intention
to create a private cause of action against
those responsible for carrying out the difficult
functions under the legislation if, on
subsequent investigation with the benefit of
hindsight, it was shown that they had reached
an erroneous conclusion and therefore failed
to discharge their statutory duties.
5. In the education cases, the claims based on
breach of statutory duty had also rightly been
struck out. A local education authority’s
obligation under the Education Act 1944 to
provide sufficient schools for pupils within its
area could not give rise to a claim for breach
of statutory duty based on a failure to provide
any or any proper schooling since the Act did
not impose any obligation on a local
education authority to accept a child for
education in one of its schools, and the fact
that breaches of duties under the Education
Acts might give rise to successful public law
claims for a declaration or an injunction did
not show that there was a corresponding
private law right to damages for breach of
statutory duty. In the case of children with
special educational needs, although they were
members of a limited class for whose
protection the statutory provisions were
enacted, there was nothing in the Acts which
demonstrated a parliamentary intention to
give that class a statutory right of action for
assume any general professional duty of care
to the plaintiff children. Their duty was to
advise the local authority in relation to the
well-being of the plaintiffs but not to advise
or treat the plaintiffs and, furthermore, it
would not be just and reasonable to impose a
common law duty of care on them.
(b). However, in the education cases a local
authority was under a duty of care in respect
of the service in the form of psychological
advice which was offered to the public since,
by offering such a service, it was under a duty
of care to those using the service to exercise
care in its conduct. Likewise, educational
psychologists and other members of the staff
of an education authority, including teachers,
owed a duty to use reasonable professional
skill and care in the assessment and
determination of a child’s educational needs
and the authority was vicariously liable for
any breach of such duties by their employees.
8. It followed that the plaintiffs in the abuse
cases had no private law claim in damages.
Their appeals would therefore be dismissed.
In the education cases the authorities were
under no liability at common law for the
negligent exercise of the statutory discretions
conferred on them by the Education Acts but
could be liable, both directly and vicariously,
for negligent advice given by their
professional employees. The education
authorities’ appeals would therefore be
allowed in part.
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damages. The duty imposed on a local

Stovin v Wise (Norfolk CC, third party)
(1996) (HL)
H v Norfolk CC (1996) (CA)
Highway authority did not take any action to
remove an earth bank on railway land which
obstructed a motorcyclist’s view, leading to
an accident
Plaintiff had been sexually abused by his
foster father
education authority to ‘have regard’ to the
need for securing special treatment for
children in need of such treatment left too
much to be decided by the authority to
indicate that parliament intended to confer a
private right of action and the involvement of
parents at every stage of the decision-making
process under the 1981 Act and their rights of
appeal against the authority’s decisions
showed that Parliament did not intend, in
addition, to confer a right to sue for damages.
Public authority liable for a negligent
omission to exercise a statutory power only if
authority was under a public law duty to
consider the exercise of the power and also
under a private law duty to act, which gave
rise to a compensation claim for failure to do
so. On the facts, not irrational for the
highway authority to decide not to take any
action; the public law duty did not give rise to
an action in damages.
Council did not owe a duty of care to plaintiff
It was impossible to discern a legisla tive
intent that there should be a duty of care in
respect of the use of the power giving rise to a
liability to compensate persons injured by the
failure to use it.
The distinction between policy and operations
is an inadequate tool with which to discover
whether it is appropriate to impose a duty of
care or not, because (i) the distinction is often
elusive; and (ii) even if the distinction is clear
cut, it does not follow that there should be a
common law duty of care.
For the five public policy considerations
enumerated by the trial judge:
1. the interdisciplinary nature of the system
for protection of children at risk and the
difficulties that might arise in disentangling
the liability of the various agents concerned;
2. the very delicate nature of the task of the
local authority in dealing with children at risk
and their parents;
3. the risk of a more defensive and cautious
approach by the local authority if a common
duty of care were to exist;
4. the potential conflict between social worker
and parents; and
5. the existence of alternative remedies under
s76 of the Child Care Act 1980 and the
powers of investigation of the local authority
ombudsman.

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Barrett v Enfield LBC (1999) (HL)
W v Essex CC (2000) (HL)
Phelps v Hillingdon LBC
Anderton v Clwyd CC
Gower v Bromley LBC
Jarvis v Hamshpire CC (2000) (HL)
Plaintiff alleged negligent treatment while in
local authority care
Plaintiff parents sought the recovery of
damages for alleged psychiatric illness
suffered by them on discovering that their
children had been sexually abused by a boy
who had been placed with them by the
council for fostering
5
Plaintiff’s claim, struck out by the trial judge
and CA, would be restored
Claim struck out by trial judge and CA,
would be restored.
A local authority could be vicariously liable
for breaches by those whom it employed,
including educational psychologists and
teachers, of their duties of care towards
pupils. Breaches could include failure to
diagnose dyslexic pupils and to provide
appropriate education for pupils with specia l
educational needs.
While a decision to take a child into care
pursuant to a statutory power was not
justiciable, it did not follow that, having taken
a child into care, a local authority could not
be liable for what it or its employees did in
relation to the child. The importance of this
distinction required, except in the clearest
cases, an investigation of the facts, and
whether it was just and reasonable to impose
liability for negligence had to be decided on
the basis of what was proved.
The parents could be primary victims or
secondary victims. Nor was it unarguable
that the local authority had owed a duty of
care to the parents.
1. It was well established that persons
exercising a particular skill or profession
might owe a duty of care in the performance
to people who it could be foreseen would be
injured if due skill and care were not
exercised and if injury or damage could be
shown to have been caused by the lack of
care. An educational psychologist or
psychiatrist or a teacher, including a special
needs teacher, was such a person. So might
be an education officer performing the
authority’s functions with regard to children
with special educational needs. There was no
justification for a blanket immunity in their
cases.
2. It was obviously important that those
engaged in the provision of educational
services under the Educational Acts should
not be hampered by the imposition of such a
vicarious liability. Lord Slynn did not,
however, see that to recognise the existence
of the duties necessarily led or was likely to
lead to that result. The recognition of the
duty of care did not of itself impose
unreasonably high standards.
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Bradford-Smart v West Sussex CC (2000)
Case
Knightley v Johns (1982) (CA)
Marshall v Osmond (1983) (CA)
Rigby v CC of Northamptonshire (1985)
(QBD)
School bullying
POLICE
Facts
The first defendant caused a road accident in
a one-way tunnel, which had a sharp bend in
the middle thus obscuring the exit. Police
inspector ordered two police officers on
motorcycles, in breach of regulations, to go
back and close the tunnel; one injured by
oncoming traffic
The plaintiff was a passenger in a stolen car
being pursued by the police. The plaintiff
tried to escape in order to avoid arrest. He
was struck and injured when the police car hit
the stolen car
The plaintiff’s shop was burnt out when
police fired a canister of CS gas into the
building in an effort to flush out a dangerous
psychopath who had broken into it. At the
time there was no fire-fighting equipment to
hand, as a fire engine which had been
standing by had been called away. The
plaintiff brought an action alleging, inter alia,
negligence, and contending that the defendant
ought to have purchased and had available a
new CS gas device, rather than the CS gas
canister, since the new device involved no
fire risk
6
Local Education Authority not liable
Decision
The police inspector in charge at the scene
(and Chief Constable) was liable in
negligence
The police officer was not liable.
The plaintiff was entitled to damages only in
negligence.
Serious bullying was outside school grounds
Reason
The inspector was negligent in not closing the
tunnel before he gave orders for that to be
done and also in ordering or allowing his
subordinates, including the plaintiff, to carry
out the dangerous manoeuvre of riding back
along the tunnel contrary to the standing
orders for road accidents in the tunnel.
Although a police officer was entitled to use
such force in effecting a suspected criminal’s
arrest as was reasonable in all the
circumstances, the duty owed by the police
officer to the suspect was in all other respects
the standard duty of care to anyone else,
namely to exercise such care and skill as was
reasonable in all the circumstances. On the
facts, the police officer had made an error of
judgment, but the evidence did not show that
he had been negligent.
1. In deciding not to acquire the new CS gas
device the defendant had made a policy
decision pursuant to his discretion under the
statutory powers relating to the purchase of
police equipment and since that decision had
been made bona fide it could not be
impugned. Furthermore, on the evidence,
there was no reason for the defendant to have
had the new device in 1977, and he was not
negligent in not having it at that date.
2. In regard to the action in negligence, since
there was a real and substantial fire risk
involved in firing the gas canister into the
building and since that risk was only
acceptable if there was equipment available to
put out a potential fire at an early stage, the
defendant had been negligent in firing the gas
canister when no fire-fighting equipment was
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Hill v CC of West Yorkshire (1988) (HL)
Osman v Ferguson (1993) (CA)
Ancell v McDermot (1993) (CA)
Police failed to detect the ‘Yorkshire Ripper’
before he murdered the plaintiff’s daughter
A schoolteacher harassed a pupil. The police
were aware of this and the teacher told a
police officer that the loss of his job was
distressing and there was a danger that he
would do something criminally insane. He
rammed a vehicle in which the boy was a
passenger. The police laid an information
against the teacher for driving without due
care and attention but it was not served. The
teacher shot and severely injured the boy and
killed his father.
Diesel fuel spillage on motorway noticed by
police patrolmen and reported to highways
department. Car skidded on road and
plaintiff’s wife killed and plaintiff and
passengers injured
7
The Chief Constable could not be liable in
damages for negligence
Action against the Metropolitan Police
Commissioner alleging negligence would be
dismissed
The police were under no duty of care to
protect road users from, or to warn them of,
hazards discovered by the police while going
about their duties on the highway, and there
was in the circumstances no special
relationship between the plaintiffs and the
police giving rise to an exceptional duty to
prevent harm from dangers created by
in attendance.
1. In the absence of any special characteristic
or ingredient over and above reasonable
foreseeability of likely harm which would
establish proximity of relationship between
the victim of a crime and the police, the
police did not owe a general duty of care to
individual members of the public to identify
and apprehend an unknown criminal, even
though it was reasonably foreseeable that
harm was likely to be caused to a member of
the public if the criminal was not detected and
apprehended.
2. Even if such a duty did exist public policy
required that the police should not be liable in
such circumstances. (see Waters v MPC
(2000) below)
As the second plaintiff and his family had
been exposed to a risk from the teacher over
and above that of the public there was an
arguable case that there was a very close
degree of proximity amounting to a special
relationship between the plaintiffs’ family and
the investigating police officers. However,
the existence of a general duty on the police
to suppress crime did not carry with it
liability to individuals for damage caused to
them by criminals whom the police had failed
to apprehend when it was possible to do so. It
would be against public policy to impose such
a duty as it would not promote the observance
of a higher standard of care by the police and
would result in the significant diversion of
police resources from the investigation and
suppression of crime.
The extreme width and scope of such a duty
of care would impose on a police force
potential liability of almost unlimited scope,
and it would be against public policy because
it would divert extensive police resources and
manpower from, and hamper the performance
of, ordinary police duties.
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Alexandrou v Oxford (1993) (CA)
Swinney v CC of Northumbria (1996) (CA)
Osman v UK (1998) (ECHR)
Police called out by burglar alarm at
plaintiff’s shop, failed to inspect rear of shop
where burglars were hiding, who then
removed goods.
Details of the plaintiff police informant were
stolen from an unattended police vehicle, who
was then threatened with violence and arson
and suffered psychiatric damage
See Osman v Ferguson (1993) above
8
another.
A plaintiff alleging that a defendant owed a
duty to take reasonable care to prevent loss to
him caused by the activities of another person
had to prove not merely that it was
foreseeable that loss would result if the
defendant did not exercise reasonable care but
also that he stood in a special relationship to
the defendant from which the duty of care
would arise. On the facts, there was no such
special relationship between the plaintiff and
the police because the communication with
the police was by way of an emergency call
which in no material way differed from such a
call by an ordinary member of the public and
if a duty of care owed to the plaintiff were to
be imposed on the police that same duty
would be owed to all members of the public
who informed the police of a crime being
committed or about to be committed against
them or their property.
It was at least arguable that a special
relationship existed between the police and an
informant who passed on information in
confidence implicating a person known to be
violent which distinguished the information
from the general public as being particularly
at risk and gave rise to a duty of care on the
police to keep such information secure.
The application of the exclusionary rule
formulated by the House of Lords in Hill v
CC of West Yorkshire (1989) as a watertight
Furthermore, it would not be in the public
interest to impose such a duty of care on the
police as it would not promote the observance
of a higher standard of care by the police, but
would result in a significant diversion of
resources from the suppression of crime.
Moreover, while the police were generally
immune from suit on grounds of public policy
in relation to their activities in the
investigation or suppression of crime, that
immunity had to be weighed against other
considerations of public policy, including the
need to protect informers and to encourage
them to come forward without undue fear of
the risk that their identity would subsequently
become known to the person implicated. On
the facts as pleaded in the statement of claim,
it was arguable that a special relationship
existed which rendered the plaintiffs
particularly at risk, that the police had in fact
assumed a responsibility of confidentiality to
the plaintiffs and, considering all relevant
public policy factors in the round, that
prosecution of the plaintiffs’ claim was not
precluded by the principle of immunity.
The aim of such a rule might be accepted as
legitimate in terms of the Convention, as
being directed to the maintenance of the
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defence to a civil action against the police,
constituted a disproportionate restriction on
their right of access to a court in breach of
article 6.1 of the European Convention on
Human Rights.
effectiveness of the police service and hence
to the prevention of disorder or crime, in
turning to the issue of proportionality, the
court must have particular regard to its scope
and especially its application in the case at
issue.

It appeared to the Court that in the instant

case the Court of Appeal proceeded on the
basis that the rule provided a watertight
defence to the police. It further observed that
the application of the rule in that manner
without further inquiry into the existence of
competing public interest considerations only
served to confer a blanket immunity on the
police for their acts and omissions during the
investigation and suppression of crime and
amounted to an unjustifiable restriction on an
applicant's right to have a determination on
the merits of his or her claim against the
police in deserving cases.

In its view, it must be open to a domestic

Costello v CC of Northumbria (1999) (CA)
Plaintiff police woman attacked by prisoner
in a cell; police inspector standing nearby did
not help
Appeal against judgment for the plaintiff
dismissed
court to have regard to the presence of other
public interest considerations which pull in
the opposite direction to the application of the
rule. Failing that, there will be no distinction
made between degrees of negligence or of
harm suffered or any consideration of the
justice of a particular case.
A police officer who assumed a responsibility
to another police officer owed a duty of care
to comply with his police duty where failure
to do so would expose that other police
officer to unnecessary risk of injury. In the
instant case, the inspector had acknowledged
his police duty to help the plaintiff and had
assumed responsibility, yet he did not even
try to do so. It followed that the inspector had
been in breach of duty in law in not trying to
help the plaintiff, and the chief constable,
although not personally in breach, was
vicariously liable therefore.

9
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Gibson v CC of Strathclyde (1999) (Court of
Session, Scotland)
Barrett v Enfield LBC (1999) (HL)
Reeves v Commissioner of Police (1999) (HL)
Kinsella v CC of Nottinghamshire (1999)
(QBD)
A person in police custody, a known suicide
risk, committed suicide
Claimant alleged, among other things, that
during a search of her house the police had
negligently caused damage to her property
10
A chief constable owed road users a duty of
care where his officers had taken control of a
hazardous road traffic situation, in this case a
collapsed bridge, but later left the hazard
unattended and without having put up cones,
barriers or other signs.
Obiter statement on Osman v UK, per Lord
Browne-Wilkinson.
The police owed a duty of care to the plaintiff
and had admitted breach. However, the
plaintiff’s deliberate and intentional act in
causing injury to himself constituted ‘fault’ as
defined in the Law Reform (Contributory
Negligence) Act 1945. Damages would be
reduced by 50 per cent
This part of the statement of case would be
struck out
Once a constable had taken charge of a road
traffic situation which, without control by
him, presented a grave and immediate risk of
death or serious injury to road users likely to
be affected by the particular hazard, it seemed
consistent with the underlying principle of
neighbourhood for the law to regard him as
being in such a relationship with road users as
to satisfy the requisite element of proximity.
In Hill the observations were made in the
context of criminal investigation. There was
no close analogy between the exercise by the
police of their function of investigating and
suppressing crime and the exercise by them of
their function of performing tasks concerned
with safety on the roads. It would be fair, just
and reasonable to hold that a duty was owed.
Where the law imposed a duty on a person to
guard against loss by the deliberate and
informed act of another, the occurrence of the
very act which ought to have been prevented
could not negative causation between the
breach of duty and the loss. That was so not
only where the deliberate act was that of a
third party, but also when it was the act of the
plaintiff himself, and whether or not he was
of sound mind.
The general rule in Hill did not provide
blanket immunity in all cases, but in each
case a balancing exercise had to be carried
out. Where it was apparent to the court that
the general rule of immunity was not
outweighed by other policy considerations,
such as the protection of informers, the
immunity continued to exist.
In some cases the material for carrying out the
balancing exercise was not provided by the
pleadings, and the exercise fell to be
performed by the trial judge after hearing the
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evidence. In other cases there would be

sufficient material evidence available on the
pleadings to enable a decision to be taken at a
pre-trial hearing.

In the present case there were no public

Waters v Commissioner of Police (2000)
(HL)
Claimant police officer raped by fellow
officer whilst off duty. She alleged, among
other things, that the police had negligently
failed to deal properly with her complaint but
allowed her to be victimised by fellow
officers
The claim against the Commissioner for
breach of personal duty (although the acts
were done by those engaged in performing his
duty) should not be struck out
policy considerations countervailing against
immunity, nor had the police assumed any
special duty of care towards the claimant, nor
could it be disputed that the police were
acting in the course of investigating a crime,
so matters did not need to be left to the trial
judge to decide.
The Courts have recognised the need for an
employer to take care of his employees quite
apart from statutory requirements. Lord
Slynn did not find it possible to say that this
was a plain and obvious case that (a) no duty
analogous to an employer’s duty can exist; (b)
that the injury to the plaintiff was not
foreseeable in the circumstances alleged and
(c) that the acts alleged could not be the cause
of the damage. Could it be said that it was
not fair, just and reasonable to recognise a
duty of care? Despite reference to Hill and
Calveley, Lord Slynn did not consider that
either of these cases was conclusive against
the claimant in the present case. Here there
was a need to investigate detailed allegations
of fact.

CROWN PROSECUTION SERVICE

Case Facts Decision Reason

Welsh v CC of Merseyside (1993) (QBD)
Plaintiff brought an action for the negligent
failure of the police and CPS to ensure that
the magistrates’ court was informed that
offences for which he had been bailed had
later been taken into consideration by the
Crown Court
The Crown Proceedings Act 1947 directed
immunity to judicial, not administrative,
functions
The CPS had a general administrative
responsibility as prosecutor to keep a court
informed as to the state of an adjourned case
or had in practice assumed such a
responsibility and had done so in the
plaintiff’s case, the relationship between the
plaintiff and the CPS was sufficiently

11
Asif Tufal
Elguzouli-Daf v Commissioner of Police
McBearty v Ministry of Defence (1995) (CA)
Case
Capital and Counties plc; Digital Equipment
Ltd v Hampshire CC
John Monroe Ltd v London Fire Authority
Church of Jesus Christ v West Yorkshire Fire
Authority (1997) (CA)
Two prosecutions discontinued after plaintiffs
detained for 85 and 22 days in custody
FIRE BRIGADE
Facts
(1) Fire in building; fire officer ordered
sprinkler system to be turned off; fire spread
and entire building destroyed; (2) Explosion
on wasteland; fire brigade did not inspect
nearby property showered with flaming
debris; property severely damaged; and (3)
Fire in church classroom; four water hydrants
failed to work and remaining three not located
in time
12
A defendant in criminal proceedings did not
have a private law remedy in damages for
negligence against the CPS, since, save in
those cases where it assumed by conduct a
responsibility to a particular defendant, the
CPS owed no duty of care to those it was
prosecuting
Decision
(1) Fire brigade liable for negligence; (2) and
(3) There was insufficient proximity to
establish a duty of care, with the result that
the defendants were not liable for negligence
in respect of the fire damage.
proximate for the CPS to owe a duty of care
to the plaintiff. It was fair, just and
reasonable for such a duty to exist and there
were no public policy grounds to exclude the
existence of such a duty.
The CPS was a public law enforcement
agency which was autonomous and
independent and acted in the public interest
by reviewing police decisio ns to prosecute
and conducting prosecutions on behalf of the
crown and, as such, there were compelling
policy considerations rooted in the welfare of
the community as a whole which outweighed
the dictates of individualised justice and
precluded the recognition of a duty of care to
private individuals and others aggrieved by
careless decisions of the CPS. It was clear
that such a duty would tend to inhibit the
CPS’s discharge of its central function of
prosecuting crime and, in some cases, would
lead to a defensive approach by prosecutors to
their multifarious duties. If the CPS were to
be constantly enmeshed in interlocutory civil
proceedings and civil trials that would have a
deleterious effect on its efficiency and the
quality of the criminal justice system.
Reason
(1) A fire brigade did not enter into a
sufficiently proximate relationship with the
owner or occupier of premises so as to come
under a duty of care merely by attending at
the fire ground and fighting the fire.
However, where the fire brigade, by their own
actions, had increased the risk of the danger
which caused damage to the plaintiff, they
would be liable for negligence in respect of
that damage, unless they could show that the
damage would have occurred in any event.
Asif Tufal

The decision to turn off the sprinkler system

had increased the risk of the fire spreading
and, since the defendant could not establish
that the building would have been destroyed
in any event, it was liable for negligence and
there was no ground for granting public
policy immunity.

(2) Decision of trial judge affirmed: there was

not sufficient proximity between the parties
such as to impose a duty of care on the fire
brigade and that the fire brigade did not
assume responsibility or bring themselves
within the necessary degree of proximity
merely by electing to respond to calls for
assistance.

(3) On its true construction, the requirement

in s13 of the Fire Services Act 1947 that a
fire brigade should take all reasonable
measures to ensure the provision of an
adequate supply of water available for use in
case of fire was not intended to confer a right
of private action on a member of the public.
The s13 duty was more in the nature of a
general administrative function of
procurement placed on the fire authority in
relation to the supply of water for fire-
fighting generally. Accordingly, no action
lay for breach of statutory duty under s13.

13
Asif Tufal
COASTGUARD
Case Facts
OLL Ltd v Secretary of State for Transport Group of 11 got into difficulties at sea.
(1997) (QBD) Plaintiffs alleged coastguard failed to respond
promptly; miscoordinated rescue attempts;
misdirected a lifeboat to the wrong area;
misdirected a Royal Navy helicopter and
failed to mobilise another. All members of
the party were rescued but four children later
dies and others suffered severe hypothermia
and shock.
AMBULANCE SERVICE
Case Facts
Kent v Griffiths (2000) (CA) Plaintiff suffered an asthma attack. Doctor
called an ambulance which did not arrive for
40 minutes, although a record prepared by a
member of the crew indicated that it arrived
after 22 minutes. The judge found that the
record of the ambulance’s arrival had been
falsified, that no satisfactory reason had been
given for the delay and that in those
circumstances the delay was culpable.
14
Decision
The coastguard were under no enforceable
private law duty to respond to an emergency
call, nor, if they did respond, would they be
liable if their response was negligent, unless
their negligence amounted to a positive act
which directly caused greater injury than
would have occurred if they had not
intervened at all. Moreover, the coastguard
did not owe any duty of care in cases where
they misdirected other rescuers outside their
own service.
Decision
In appropriate circumstances, an ambulance
service could owe a duty of care to a member
of the public on whose behalf a 999 call was
made if, due to carelessness, it failed to arrive
within a reasonable time.
Reason
There was no obvious distinction between the
fire brigade responding to a fire where lives
were at risk and the coastguard responding to
an emergency at sea.
Reason
Such a service was part of the health service,
and its care function included transporting
patients to and from hospital when it was
desirable to use an ambulance for that
purpose. It was therefore appropriate to
regard the ambulance service as providing
services of the category provided by hospitals
rather than services equivalent to those
rendered by the police or fire service whose
primary obligation was to protect the public
generally. Although situations could arise
where there was a conflict between the
interests of a particular individual and the
public at large, there was no such conflict in
the instant case since the plaintiff was the
only member of the public who could have
been adversely affected. Similarly, although
different considerations could apply in a case
where the allocation of resources was being
attacked, in the instant case there was no
question of an ambulance not being available
or of a conflict of priorities. In those
Asif Tufal
CASES WHICH APPEAR TO REVERSE THIS TREND
Case Facts
Spring v Guardian Assurance (1994) (HL) Plaintiff’s prospective employer received
such a bad reference from the defendant that
it refused to have anything to do with him.
Applications to two other companies were
also rejected. Plaintiff claimed for the loss
caused to him by the reference.
White v Jones (1995) (HL) A testator executed a will cutting his two
daughters (plaintiffs) out of his estate. The
testator became reconciled with them and sent
a letter to his solicitors giving instructions
15
Decision
Applying the principle that where the
defendant assumed or undertook
responsibility towards the plaintiff in the
conduct of his affairs and the plaintiff relied
on the defendant to exercise due skill and care
in respect of such conduct, the defendant was
liable for any failure to use reasonable skill
and care, an employer who provided a
reference in respect of an employee, whether
past or present, to a prospective future
employer ordinarily owed a duty of care to
the employee in respect of the preparation of
the reference and was liable in damages to the
employee in respect of economic loss suffered
by him by reason of the reference being
prepared negligently.
Where a solicitor accepted instructions to
draw up a will and as the result of his
negligence an intended beneficiary under the
will was reasonably foreseeably deprived of a
circumstances, the ambulance service, having
decided to provide an ambulance, was
required to justify a failure to attend within a
reasonable time. Moreover, since there were
no circumstances which made it unfair or
unreasonable or unjust that liability should
exist, there was no reason why there should
not be liability if the arrival of the ambulance
was delayed without good reason. The
acceptance of the call established the duty of
care, and the delay caused the further injuries.
Reason
In the employer/employee relationship, where
economic loss in the form of failure to obtain
employment was clearly foreseeable if a
careless reference was given and there was an
obvious proximity of relationship, it was fair,
just and reasonable that the law should
impose a duty of care on the employer not to
act unreasonably and carelessly in providing a
reference about his employee or ex-employee.
The duty was to avoid making untrue
statements negligently or expressing
unfounded opinions even if honestly believed
to be true or honestly held.
Furthermore, public policy was in favour of
not depriving an employee of a remedy to
recover the damages to which he would
otherwise be entitled as a result of being the
victim of a negligent reference and even if the
number of references given was reduced it
was in the public interest that the quality and
value would be greater.
1. The assumption of responsibility by a
solicitor towards his client should be
extended in law to an intended beneficiary
who was reasonably foreseeably deprived of
Asif Tufal
Gorham v BT plc (2000) (CA)
that a new will be prepared including gifts of
£ 9,000 each to the plaintiffs. Testator died
almost two months later before the new
dispositions to the plaintiffs were put into
effect. Plaintiffs brought an action against
solicitors for damages for negligence.
Plaintiff brought an action for breach of duty
of care in giving negligent pension advice to
her husband, now deceased. Defendant
conceded that it owed Gorham a duty of care
and was in breach of duty in failing to advise
him that his employers’ scheme might be
superior to a personal pension plan.
16
legacy the solicitor was liable for the loss of
the legacy.
An insurance company which owed a duty of
care to its customer when giving advice in
relation to insurance provision for pension
and life cover owed an additional duty of care
to the customer’s dependants where it was
clear that the customer intended thereby to
create a benefit for them.
However, that plaintiff could not claim for
loss arising after the negligent advice had
been corrected (in this case, in November
1992).
his intended legacy as a result of the
solicitor’s negligence in circumstances in
which there was no confidential or fiduciary
relationship and neither the testator nor his
estate had a remedy against the solicitor, since
otherwise an injustice would occur because of
a lacuna in the law and there would be no
remedy for the loss caused by the solicitor’s
negligence unless the intended beneficiary
could claim.
2. Adopting the incremental approach by
analogy with established categories of
relationships giving rise to a duty of care, the
principle of assumption of responsibility
should be extended to a solicitor who
accepted instructions to draw up a will so that
he was held to be in a special relationship
with those intended to benefit under it, in
consequence of which he owed a duty to the
intended beneficiary to act with due
expedition and care in relation to the task on
which he had entered
The principle in White v Jones covered the
present situation. It was fundamental to the
giving and receiving of advice upon a scheme
for pension provision and life assurance that
the interest of the customer’s dependants
would arise for consideration. Practical
justice required that disappointed
beneficiaries should have a remedy against an
insurance company in circumstances like the
present. The financial adviser could have
been in no doubt about his customer’s
concern for the plaintiffs and the advice was
given on the assumption that their interests
were involved. The duty was a limited duty
to the dependants not to give negligent advice
to the customer which adversely affected their
interests as he intended them to be.